WORLD TRADE  
ORGANIZATION  RESTRICTED 
WT/DSB/M/294 
9 June 2011 
 (11-2851) 
Dispute Settlement Body 
25 March 2011  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard 
on 25 March 2011 
 
Chairperson:  Mrs. Elin Østebø Johansen (Norway) 
 
 
 Prior to the adoption of the Agenda,  the item concerning the Panel Report in the case on:  
"European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners 
from China" (DS397) was removed from the proposed Agenda following the EU's decision to appeal 
the Report.     Subjects discussed: Page 
 
1.  Surveillance of implementation of recommendations adopted by the DSB ......................... 2  
(a)  United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States ............................................................................................................. ............ 3 
(b)  United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by the Unite d States ................................................................................... 5 
(c)  United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States ............................................................................................................. ............ 6 
(d)  European Communities1 – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Union ......................................................................... 6  
(e)  United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States ............................................................................................................. ............ 7 
(f)  United States – Continued existence and a pplication of zeroing methodology:  Status 
report by the United States ................................................................................................... ....... 8 
(g)  United States – Laws, regulations and methodology for calculating dumping margins 
("zeroing"):  Status report by the United States .......................................................................... 9  
(h)  China – Measures affecting trading righ ts and distribution services for certain 
publications and audiovisual entertainment products:  Status report by China .......................... 9  
2.  United States – Use of zeroing in an ti-dumping measures involving products 
from Korea .................................................................................................................... .......... 10 
(a)  Implementation of the recommendations of the DSB ............................................................... 10  
                                                      
1 On 1 December 2009, the Treaty of Lisbon amendi ng the Treaty on Europe an Union and the Treaty 
establishing the European Community (done at Lisb on, 13 December 2007) en tered into force.  On 
29 November 2009, the WTO received a verbal note (WT /L/779) from the Council of the European Union and 
the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon, as of 
1 December 2009, the European Union replaces and succeeds the European Community. WT/DSB/M/294 
Page 2  
 
  3.  United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB .......................................... 11  
(a)  Statements by the European Union and Japan .......................................................................... 11  
4.  European Communities
1 – Certain measures prohibiting the importation and 
marketing of seal products .................................................................................................... . 12 
(a)  Request for the establishment of a panel by Canada ................................................................ 12  
5.  European Communities1 – Measures prohibiting the importation and marketing 
of seal products .............................................................................................................. .......... 13 
(a)  Request for the establishment of a panel by Canada ................................................................ 13  
6.  China – Certain measures affectin g electronic payment services....................................... 14  
(a)  Request for the establishment of a panel by the United States ................................................. 14  
7.  China – Countervailing and anti-dumping duties on grain oriented flat-rolled 
electrical steel from th e United States ................................................................................... 15  
(a)  Request for the establishment of a panel by the United States ................................................. 15  
8.  European Communities1 – Measures prohibiting the importation and marketing 
of seal products .............................................................................................................. .......... 15 
(a)  Request for the establishment of a panel by Norway ................................................................ 15  
9.  United States – Definitive anti-dum ping and countervailing duties on certain 
products from China............................................................................................................ ... 16 
(a)  Report of the Appellate Body and Report of the Panel ............................................................. 16  
10.  Proposed nomination for the indicative list of governmental and 
non-governmental panelists ................................................................................................... 30 
 
 
1. Surveillance of implementation of recommendations adopted by the DSB 
(a) United States – Section 211 Omnibus Appr opriations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.100) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.100) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.75) 
 (d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.38) 
 
(e) United States – Measures relating to zeroi ng and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.18) 
 (f) United States – Continued existence and app lication of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.15) 
 
(g) United States – Laws, regulations a nd methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.9) 
 (h) China – Measures affecting trading rights a nd distribution services for certain publications 
and audiovisual entertainment products:  Status report by China (WT/DS363/17/Add.2)  WT/DSB/M/294 
 Page 3 
 
 
  1. The Chairperson recalled that Article 21.6 of the DSU required that unless the DSB decided 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establis hment of the reasonable 
period of time and shall remain on the DSB's Agenda  until the issue was resolv ed.  She proposed that 
the eight sub-items under Agenda item 1 be considered separately.  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.100) 
2. The Chairperson drew attention to documen t WT/DS176/11/Add.100, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US Section 211 Om nibus Appropriations Act of 1998. 
3. The representative of the United States said that  his country had provided a status report in 
this dispute on 14 March 2011, in accordance with Article 21.6 of the DSU.  As had been noted, a 
number of legislative proposals that would implem ent the DSB's recommendations and rulings in this 
dispute had been introduced in the 111th Congress.  The US administration would continue to work 
with Congress to implement the DSB's recommendations and rulings. 
4. The representative of the European Union said th at his delegation thanked the United States 
for its 101 status report pertaining to this dispute.   The EU hoped that the US authorities would very 
soon take steps towards implementing the DSB's ruling and resolve this matter. 
5. The representative of Cuba said that the WTO was currently at a critical juncture:  the Doha 
Round was trapped in a vicious circle and Member s were faced with a long list of cases concerning 
the US non-compliance.  It was nine years and 34 days since the United States had informed the DSB 
on 19 February 2002 that it needed a reasonable period of time to implement the DSB's 
recommendations and rulings pertaining to the Secti on 211 dispute.  At the present meeting, the 101 
status report presented by the United States did not contain any change.  Since the purpose of the DSU 
provisions was , inter alia,  to ensure the credibility of the syst em, it was hard to understand the US 
non-compliance.  This negative precedent would not  encourage other non-complying Members to act 
promptly.  The United States should explain why it continued to disregard the rules of international 
law.  Thus Cuba urged the United States to provide  reasons for its actions.  The US authorities had not 
taken a single step to repeal Section 211, and avoide d the consideration of bills aimed at rectifying 
this violation of international law.  There was no justification for keeping this matter on the DSB's 
Agenda indefinitely, given that this dispute was not as technically or legislatively complex to resolve 
as some other disputes that had been r esolved.  The solution to this disput e was to repeal Section 211.    
6. At the beginning of 2011, Cuba had warned th at the US non-compliance and its lack of action 
regarding the Section 211 dispute encouraged enforc ement claims by US citizens who benefited from 
politicized and biased court rulings against Cuba, at the cost of trademark and patent rights of Cuban 
owners that were duly registered and recognized in  the United States.  To allow such misappropriation 
for the claimants would set another negative preceden t.  The ongoing enforcement of Section 211 also 
encouraged unlawful use of the Havana Club trad emark in the United States by the Bacardi company 
regarding a rum not produced in Cuba and had been  conducive to spurious rulings by US courts in 
favour of Bacardi, which had no rights of ownership over a trademark, which had been abandoned by 
its original owner and was duly registered by the Cuban company Cubaexport.  Contrary to what had 
taken place in the United States with the Havana Club, the Supreme Court of Spain had recently found against Bacardi and had confirmed that th e trademark belonged to the Pernod Ricard and 
Cubaron joint venture.  This was the third time that the Spanish court had rejected Bacardi's attempt to 
unduly claim ownership of the brand and its unlawful use in Spain.  In Cuba's view, this constituted a 
sound precedent to prevent the infringement of inte llectual property rights from being repeated in WT/DSB/M/294 
Page 4  
 
  Spain.  The United States should follow suit by repealing Section 211, which only served to 
accommodate the commission of fraudulent acts in its territory. 
7. The representative of China said that her country  thanked the United States for its status 
report and noted that the United States had, once again, reported non-compliance.  Nine years had 
passed since the adoption of the DSB's recommendations and rulings in this dis pute.  In China's view, 
such a situation violated the principle of prompt im plementation stipulated in the DSU provisions.  It 
was also highly inappropriate for a developed-country Member to maintain, for such a long period of time, a WTO-inconsistent measure that affected the interests of a developing-country Member.  
China, therefore, supported Cuba and urged the Unit ed States to implement the DSB's rulings without 
any further delay. 
8. The representative of the Bolivarian Republic of  Venezuela said that her country supported 
Cuba's statement and reiterated its request that the United States put an end to its policy of economic, 
commercial and financial blockade to the detriment of Cuba.  That blockade was reflected in the 
numerous actions taken by the United States over the p ast 60 years.  In particular, the United States 
had failed to implement the Appella te Body's ruling that Section 211 was inconsistent with the TRIPS 
Agreement and the Paris Convention and should ther efore be repealed.  As a WTO Member and a 
DSB participant, Venezuela, once again, regretted that the US status report repeated, as it had for 
many years and most recently on 15 March 2011, th at "t]he US Administration will continue to work 
with the US Congress with respect to appropriate st atutory measures that would resolve this matter".  
In Venezuela's view, this qualified as "action withou t results".  Apart from the harm caused to the 
Cuban people, Venezuela was concerned that th e non-compliance with multilateral trading rules 
would undermine the credibility of the DSB.  As  it had done on previous occasions, Venezuela urged 
the United States to comply with the DSB's recommendations. 
9. The representative of Uruguay said that, on a number of occasions, his country had expressed 
its systemic concern about the US failure to comply with the DSB's rulings pertaining to this dispute.  
In Uruguay's view, it was important to preserve the credibility of the dispute settlement system.  Thus, 
Uruguay urged the United States to make greater efforts to comply with the DSB's rulings. 
10. The representative of Brazil said that his country thanked the United States for its status 
report pertaining to the Section 211 dispute.  Braz il remained concerned about  the prolonged situation 
of non-compliance with the DSB's recommendations and rulings.  Brazil urged the United States to 
expedite its efforts and to co mply with its WTO obligations. 
11. The representative of Nicaragua said that her c ountry thanked the United States for its status 
report, but regretted that the report confirmed the continued failure by the United States to comply 
with the DSB's recommendations and rulings.  Ni caragua hoped that the United States would soon 
take the necessary steps to comply with the DSB's ruling and resolve this long-standing dispute.  
Nicaragua supported Cuba's statement and, once ag ain, urged the United States to implement the 
DSB's recommendations and rulings so as to  preserve the credibility of the DSB. 
12. The representative of Mexico said that the discussion under this Agenda item could provide 
useful input for the on-going discussions carried out in the context of the DSU negotiations.  If 
Members wished to amend the DSU provisions, th ey should do so by taking into account their 
practical experience.  Any Member could initiate its own dispute if it considered that it was affected 
by the failure of another Member to resolve a dis pute or to comply with the DSB's recommendations.  
Mexico urged the parties to resolve this disput e through the legal remedies provided for under the 
DSU.  Members expected that the United States would comply with the DSB's recommendations.    WT/DSB/M/294 
 Page 5 
 
 
  13. The representative of Angola said that her country thanked the United States for providing 
information on the implementation of the DSB's d ecision and the Appellate Body's recommendations 
of 12 February 2002 re garding Section 211.  Angola recalled th at prompt compliance with the DSB's 
rulings and recommendations was fundamental to ensu ring an effective resolution of disputes to the 
benefit of all Members.  The delay in the implementation of the DSB's decision affected the efficiency 
and the predictability of the multilateral trading sy stem and set a negative precedent for other cases.  
Angola hoped that the parties to the dispute would de monstrate concrete will a nd take actions in order 
to send a signal of respect for WTO rules. 
14. The representative of Zimbabwe said that his count ry thanked the United States for its status 
report on compliance with the Appellate Body's deci sion of 2002.  Zimbabwe noted that, although this 
decision had been taken almost a decade ago, there a ppeared to have been no interest on the part of 
the United States to implement it.  He said that  the US continued non-compliance undermined the 
credibility of the WTO and the DSB.  Zimbabwe s upported Cuba's statement and, once again, urged 
the United States to comply with the DSB's recommendations and rulings. 
15. The representative of Ecuador said that his country supported Cuba's statement and wished to 
point out that Article 21 of the DSU referred to prompt compliance with the DSB's rulings and 
recommendations, in particular with regard to matters  affecting the interests of developing countries.  
In that regard, Ecuador urged the United States to a ccelerate its efforts to ensure the full and prompt 
implementation of the DSB's rulings and recommendations , in particular with re gard to Section 211. 
16. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.100) 
17. The Chairperson drew attention to documen t WT/DS184/15/Add.100, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
18. The representative of the United States said that  his country had provided a status report in 
this dispute on 14 March 2011, in accordance with Ar ticle 21.6 of the DSU.  As of November 2002, 
the US authorities had addressed the DSB's recommendations and rulings with respect to the calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty inv estigation at issue in 
this dispute.  Details were provided in docum ent WT/DS184/15/Add.3.  With respect to the 
recommendations and rulings of the DSB that had not  already been addressed by the US authorities, 
the US Administration would work with the US Congress with respect to appropriate statutory 
measures that would resolve this matter. 
19. The representative of Japan said that his country  thanked the United States for its statement 
and its most recent status report.  Japan took note  of the US report that the United States had taken 
certain measures to implement part of the DSB' s recommendations in November 2002.  As for the 
remaining part of the DSB's recommendations, Japan  hoped that the United States would soon be in a 
position to report to the DSB on more tangible progr ess.  Full and prompt implementation of the 
DSB's recommendations and rulings was "essential to  the effective functioning of the WTO and the 
maintenance of a proper balance of th e rights and obligations of Members".2  Japan called on the 
United States to fully implement the DSB's recommendations in this long-standing dispute without further delay. 
                                                      
2 Article 3.3 of the DSU. WT/DSB/M/294 
Page 6  
 
  20. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.75) 
21. The Chairperson drew attention to documen t WT/DS160/24/Add.75, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning Section 110(5)  of the US Copyright Act. 
22. The representative of the United States said that  his country had provided a status report in 
this dispute on 14 March 2011, in accordance with Article 21.6 of the DSU.  The US Administration 
would continue to confer with the EU, and to work  closely with the US Congress, in order to reach a 
mutually satisfactory resolution of this matter. 
23. The representative of the European Union said that the EU thanked the United States for its 
status report and noted that the United States was again reporting non-compliance.  The EU remained 
keen to work with the US authorities towa rds the complete resolution of this case.  
24. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.38) 
25. The Chairperson drew attention to documen t WT/DS291/37/Add.38, which contained the 
status report by the European Union on progress in the implementation of the DSB's 
recommendations in the case concerning its measures a ffecting the approval and marketing of biotech 
products. 
26. The representative of the European Union said that, once again, the EU noted that its 
regulatory procedures on biotech prod ucts continued to work as foreseen in the legislation.  The 
number of GMOs authorized since the date of establishment of the Panel was thirty-four.  In 2010, 11 applications had been authorized, more than doubl e the number of authorizations in 2009, including 
one authorization for cultivation.  At the Agri culture Council held on 17 March 2011, two 
authorizations
3 had been examined, together with the re newal of the authorization of maize 1507.  
Progress had also been made on other applications for authorization.  Four more draft applications had 
been voted in the Standing Committee in February 20114 and the Council would examine those 
applications in the coming weeks.  The EU welcom ed the continuation of the constructive technical 
dialogue with the United States regarding issues re lated to biotechnology.  The next meeting was 
scheduled for 28 March 2011.  The EU hoped that this constructive approach based on dialogue 
would allow the parties to leave litigation aside. 
27. The representative of the United States said that  his country thanked the EU for its status 
report and its statement at the present meeting.  The United States remained concerned with delays in 
the EU's approval system for biotech products and the resulting effects on trade.  The United States 
was likewise concerned with bans a dopted by EU member States on biotech products approved at the 
EU level.  In just a few days, as had been men tioned by the EU, a US delegation would be meeting 
                                                      
3 Maize MON89034xMON88017 and cotton GHB614MON89034. 
4 MIR604×GA21 maize, BT11×MIR604 maize, 281-24-236/3006-210-23 cotton, 
Bt11×MIR604×GA21 maize.  WT/DSB/M/294 
 Page 7 
 
 
  with EU officials in Brussels to  discuss these matters and relate d issues.  The United States looked 
forward to a constructive discussion. 
28. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.18) 
29. The Chairperson drew attention to documen t WT/DS322/36/Add.18, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US measures relating to zeroing and sunset reviews. 
30. The representative of the United States said that  his country had provided a status report in 
this dispute on 14 March 2011 in accordance with Article 21.6 of the DSU.  As the United States had 
explained in its status report and at the January and February 2011 DSB meetings, in December 2010 
the US Department of Commerce had announced a pr oposal to change the calculation of weighted 
average dumping margins and assessment rates in certa in anti-dumping proceedings.  Details of that 
proposal had been published in the Federal Register.5  As had been explained in the notice, the 
proposal required a period for public comment and would involve consultati ons with appropriate 
committees in the US Congress.  At the present time, the US Department of Commerce was 
continuing with its ongoing work on the December pr oposal.  Because of the US concerns about the 
findings regarding zeroing in this and other disp utes, responding to those findings had presented 
substantial challenges for the United States and ha d required significant resources.  The proposal 
reflected that effort, and addressed adverse findi ngs on zeroing in reviews, sunset reviews, and 
transaction-to-transaction comp arisons in investigations. 
31. The representative of Japan said that his country  thanked the United States for its statement 
and its most recent status report.  Japan took note of the statements that the internal consultation 
process and ongoing work was underway, based on the proposal announced by the US Department of 
Commerce on 28 December 2010.  While taking th e US implementation efforts as a positive step 
forward, Japan continued to seek prompt and full co mpliance by the United States with respect to all 
of the measures at issue that were subject to th e recommendations in this dispute.  Japan looked 
forward to an ongoing dialogue with the United Stat es and would closely monitor any developments 
on this matter.  Japan reserved its right under the DSU to take appropriate action, if necessary. 
32. The representative of China said that her count ry welcomed the positive steps taken by the 
United States towards the implementation of the DSB's recommendations and rulings on zeroing 
issues.  With respect to the proposal of the US Department of Commerce (USDOC) to end the 
practice of using zeroing methodology in reviews, wh ich had appeared on the US Federal Register of 
28 December 2010, China wished to make some comment s.  First, with regard to the prior original 
anti-dumping investigations and reviews, the USDO C should provide exporters with the opportunity 
to petition a revised dumping margin calculation.  Th is would require the USDOC to adopt guidelines 
for the transition period from the prior methodology to the revised methodology.  China believed that 
currently effective dumping margins calculated using zeroing methodology s hould be eligible for 
revision to ensure fairness and to a void prolonged and un necessary litigations. 
33. Second, the United States should take this opport unity to clarify important issues concerning 
the use of targeted dumping, and communicate its inte ntion to abide by clear international obligations 
and prohibit the use of zeroing methodology.  The USDOC proposal of 28 December 2010 did not 
identify the issue of targeted dumping by name, but did clearly refer to it when explaining the 
                                                      
5 75 Federal Register 81533 (28 December 2010). WT/DSB/M/294 
Page 8  
 
  proposed methodology.  Specifically, the USDOC had indicated that the revised methodology would 
be used in administrative reviews, "except where the Department determines that application of a 
different comparison method is more appropriate".  In a series of recent original investigations, the 
USDOC had taken the position that a finding of targ eted dumping produced broad discretions for the 
dumping margin calculation, and the average-to-transaction comparison methodology used in the 
targeted dumping context incorporated the zeroing methodology.  China had serious concerns about 
the appropriateness of this recently-developed practi ce.  China wished to ask the United States to 
clarify how the USDOC used the targeted dumping methodology to calculate dumping margins, and why the zeroing methodology was necessary in connec tion with this alternative method.  China 
looked forward to the clarification by the United States of its proposal in light of those comments. 
34. The representative of the United States said that  a number of substantive comments had just 
been made, and he looked forward to receiving that  statement and reviewing those comments.  He 
said that, at this point, the US Department of Co mmerce had issued a proposal which was not final, 
and did not prejudge what might happen in any specific past review.  The proposal was subject to comment and the United States was reviewing the comments it had received. 
35. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.15) 
36. The Chairperson drew attention to documen t WT/DS350/18/Add.15, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning the existence and application of zeroing methodology by the United States. 
37. The representative of the United States said th at his country had addressed the issue of 
compliance with the findings in this dispute in  the status report provided on 14 March 2011 and 
earlier under Agenda item 1(e) of the present meeting.   The United States referred Members to that 
statement for further details.   
38. The representative of the European Union said that the EU thanked the United States for its 
status report.  The EU had commented on the US proposal of 28 December 2010 at the DSB meetings 
in January and February 2011.  Thus, the EU had little  to add to what it had stated at those previous 
meetings.  The EU simply reiterated its request th at the United States ensure that unduly collected 
duties imposed and collected from the expiry of the deadline for implementation until full compliance 
were refunded, and that the proposal that it adopted  would ensure full complia nce with WTO rules.  
The EU remained ready to engage with the Unite d States so that these objectives could be achieved. 
39. The representative of the United States said that, as explained at prior DSB meetings, the 
United States was not aware of any other inst ances in which a Member had refunded duties in 
response to an adverse finding in a WTO disput e.  As it had explained at the January and 
February 2011 DSB meetings, the United States unde rstood that the EU had taken a very different 
approach in the Bananas dispute than th e one suggested at the present meeting. 
40. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
  WT/DSB/M/294 
 Page 9 
 
 
  (g) United States – Laws, regul ations and methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.9) 
41. The Chairperson drew attention to document WT/DS294/38/Add.9, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US laws, regulations and me thodology for calculating dumping margins. 
42. The representative of the United States said th at his country had addressed the issue of 
compliance with the findings in this dispute in the status report provided on 14 March 2011, and 
earlier under Agenda item 1(e) of the present meeting.   The United States referred Members to that 
statement for further details. 
43. The representative of the European Union said that the EU thanked the United States for its 
status report and referred Members to its statem ent made under Agenda item 1(f) concerning the US 
proposal of 28 December 2010. 
44. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(h) China – Measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products:  Status report by China (WT/DS363/17/Add.2) 
45. The Chairperson drew attention to document WT/DS363/17/Add.2, which contained the 
status report by China on progress in the implemen tation of the DSB's recommendations in the case 
concerning China's measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products. 
46. The representative of China said that her country  had presented its status report in accordance 
with Article 21.6 of the DSU.  China respected the DSB's rulings and recommendations, despite its 
reservations regarding the Reports of the Appellate Bo dy and the Panel in this dispute.  As China had 
stated before, this dispute involved a number of  Chinese administrative measures on cultural products 
and was embodied with more comple xity and sensitivity than other disputes.  In that regard, China 
hoped that relevant WTO Members could understa nd the difficult and complicated situation that 
China was facing during the process of implementa tion.  China had made tremendous efforts to 
implement the DSB's rulings and recommendations in  this dispute, and had thus far completed 
amendments to most measures at issue, including Regulations on the Manageme nt of Publications and 
Regulations on the Management of Audiovisual Products  and a number of rules at ministerial level.  
This demonstrated China's sincerity towards the implementation of the DSB's rulings and 
recommendations.  China believed that this matter w ould be resolved properly through joint efforts 
and mutual cooperation with relevant parties. 
47. The representative of the United States said that his country thanked China for its status report 
and its statement.  The United States was troubled by  the lack of any apparent progress by China in 
bringing its measures relating to films for theat rical release into compliance with the DSB's 
recommendations and rulings.  The United States also  had significant concerns about the incomplete 
progress relative to China's measures relating to audiovisual home entertainment products, reading 
materials, and sound recordings.  The United States and China were in discus sions regarding how to 
handle any eventual request for a compliance pr oceeding under Article 21.5 of the DSU and any 
eventual request for authorization to suspend concessions under Article 22.6 of the DSU.  The 
United States hoped to report progress in those disc ussions in the coming days.  The United States 
wished to recall, as China and other Members were aw are, that the United States did not consider that 
the DSU required a complaining party to request  an Article 21.5 compliance proceeding before 
pursuing a request pursuant to Article 22.2 of the DSU. WT/DSB/M/294 
Page 10  
 
  48. The representative of the European Union said th at the EU thanked China for its most recent 
status report.  The EU was glad that China had made important efforts in  order to implement the 
DSB's recommendations and rulings in this dis pute, which, the EU acknowledged, touched upon 
complex issues.  The EU was nonetheless concerned that full implementation had not been achieved 
by the expiry of the reasonable period of time, and al so by China's comments in its status report.  In 
particular, China referred to implementation issues  that were still outstanding, which it apparently 
suggested to address via joint efforts and cooperati on.  The EU called on China to expeditiously and 
fully implement the DSB's recommendations in or der to remove any remaining shortcomings in 
China's import and distribution regime.  Complia nce with the DSB's recommendations and rulings 
was essential to the functioning of the system an d to ensuring a proper balance of rights and 
obligations.  Compliance required full implementati on of the findings of the Reports, which were 
unconditionally accepted by the parties to the disput e.  The EU remained convinced that China's 
cultural policies could be de veloped and implemented within the boundaries set by full 
implementation of China's WTO obligations. 
49. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
2. United States – Use of zeroing in anti-dum ping measures involving products from Korea 
(a) Implementation of the recommendations of the DSB 
50. The Chairperson recalled that in accordance w ith the DSU provisions, the DSB was required 
to keep under surveillance the implementation of r ecommendations and rulings of the DSB, in order 
to ensure effective resolution of disputes to the bene fit of all Members.  In this respect, Article 21.3 of 
the DSU provided that the Member concerned shall in form the DSB, within 30 days after the date of 
adoption of the panel or Appellate Body report, of its intentions in respect of implementation of the 
recommendations and rulings of the DSB.  She reca lled that at its meeting on 24 February 2011, the 
DSB had adopted the Panel Report pertaining to the di spute on:  "United States – Use of Zeroing in 
Anti-Dumping Measures Involving Products from Korea".  She invited the United States to inform the 
DSB of its intentions in respect of im plementation of the DSB's recommendations. 
51. The representative of the United States said that, on 24 February 2011, the DSB had adopted 
the Panel Report in the dispute:  "United States – Use of Zeroing in Anti-Dumping Measures 
Involving Products from Korea" (DS402).  At the present meeting, as provided in the first sentence of Article 21.3 of the DSU, the United States wished  to state that it intended to implement the 
recommendations and rulings of the DSB in a mann er that respected its WTO obligations.  The 
United States would need a reasonable period of time in which to implement. 
52. The representative of Korea said  that his country thanked the United States for its statement 
regarding its intentions regarding the implementa tion of the DSB's recommendations and rulings in 
this dispute.  Korea noted that the DSU called for immediate implementation of the DSB's recommendations and rulings and proper implementati on in this case would require the re-calculation 
of dumping margins and revocation of anti-dumping or der.  Korea would consider the US statement 
carefully in this regard.  He said that the DSU a llowed a reasonable period of time for implementation 
if immediate compliance was impracticable and Ko rea looked forward to entering into bilateral 
discussions regarding the reasonable period of time.  In the meantime, Korea reserved its rights under 
Articles 21 and 22 of the DSU. 
53. The DSB took note of the statements, and of the information provided by the United States 
regarding its intentions in respect of implementation of the DSB's recommendations.  WT/DSB/M/294 
 Page 11 
 
 
  3. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Union and Japan 
54. The Chairperson said that this item was on the Agen da of the present meeting at the request of 
the European Union and Japan.  She then invited the respective representatives to speak. 
55. The representatives of the European Union said that, as it had done many times before, the 
EU wished to ask the United States when it would effectively stop the transfer of anti-dumping and 
countervailing duties to the US industry and, hence, put an end to the condemned measure.  The fact 
that the United States had stopped disbursing duties collected after a certain point in time did not 
achieve full compliance.  Every disbursement that still took place was clearly an act of non-
compliance with the DSB's recommendations.  Once again, the EU renewed its call on the 
United States to abide by its clear obligation unde r Article 21.6 of the DSU and to submit status 
reports pertaining to this dispute. 
56. The representative of Japan said that, as the latest distributions showed6, the CDSOA 
remained operational.  According to US Customs a nd Border Protection, "the distribution process will 
continue for an undetermined period".7  Japan urged the United States to stop the illegal distributions 
and repeal the CDSOA, not just in form but in substance, so as to resolve this dispute.  According 
to Article 21.6 of the DSU, the United States was under obligation to provide the DSB with a status report in this dispute. 
57. The representative of China said that her country  thanked the EU and Japan for bringing this 
item before the DSB at the present meeting.  Chin a shared the concerns of the EU and Japan and 
wished to join them in urging the United States to fu lly comply with the DSB's rulings on this matter.  
China also believed that this matter should re main under the surveillance of the DSB until the 
United States fully complied with the DSB's rulings. 
58. The representative of Brazil said that his country  thanked the EU and Japan for keeping this 
item on the Agenda of the DSB.  As at previous DSB meetings, Brazil urged the United States to stop 
making disbursements pursuant to the CDSOA.  On ly then would the issue in this dispute be 
"resolved" and the United States would no longer be required to provide status reports pursuant to Article 21.6 of the DSU. 
59. The representative of Canada said that her count ry thanked the EU and Japan for placing this 
item on the Agenda of the present meeting.  As stated  at previous meetings, Canada agreed with the 
EU and Japan that the CDSOA remained subject to  the surveillance of the DSB until the United States 
ceased to administer it. 
60. The representative of India said that his count ry thanked the EU and Japan for regularly 
bringing this issue before the DSB.  India remained disappointed about the US continued operation of 
the CDSOA and shared the concerns expressed by previ ous speakers.  As previously stated, India was 
concerned that continued non-compliance by Member s led to a growing lack of credibility of the 
dispute settlement system.  India agreed with the EU and Japan that the Byrd Amendment should 
continue to remain under the surveillance of the DSB until the United States ceased to administer it. 
                                                      
6 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/tr ade/priority_trade/add_cvd/cont_dump/annual_report/ 
7 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/trad e/priority_trade/add_cvd/cont_dump/cont_dump_faq.xml WT/DSB/M/294 
Page 12  
 
  61. The representative of Thailand said that his count ry thanked the EU and Japan for continuing 
to bring this item before the DSB.  Thailand supp orted the statements made by previous speakers and 
continued to urge the United States to fully comp ly with the DSB's recommendations and rulings on 
this matter. 
62. The representative of the United States said that, as his country had explained at previous 
DSB meetings, the US President had signed the Defi cit Reduction Act into law on 8 February 2006.  
That Act included a provision repealing the Contin ued Dumping and Subsidy Offset Act of 2000.  
Thus, the United States had taken all actions necessary to implement the DSB's recommendations and rulings in these disputes.  Furthermore, the Un ited States recalled that Members had acknowledged 
during previous DSB meetings that the 2006 Defic it Reduction Act did not permit the distribution of 
duties collected on goods entered after 1 October 2007.  With respect to comments regarding further 
status reports in this matter, as the United States had already explained at previous DSB meetings, the 
United States failed to see what purpose would be served by further submission of status reports 
repeating the progress the United States had made in the implementation of the DSB's recommendations and rulings. 
63. The DSB took note of the statements. 
4. European Communities – Certain measures prohibiting the importation and marketing 
of seal products 
(a) Request for the establishment of a panel by Canada (WT/DS369/2) 
64. The Chairperson recalled that the DSB had considered this matter at its meeting on 
24 February 2011 and had agreed to revert to it.   She drew attention to the communication from 
Canada contained in document WT/DS369/2, and invited the representative of Canada to speak. 
65. The representative of Canada said that, at th e 24 February 2011 DSB meeting, her country 
had made its first request for the establishment of a panel to examine Belgian and Dutch measures that 
prohibited the importation and the marketing of seal products.  Canada considered that the Belgian 
and Dutch measures were inconsistent with the EU's obligations under the GATT 1994 and the TBT 
Agreement, and the reasons for this were set out in Canada's panel request.  Since making its first 
request for the establishment of a panel, Canada ha d been informed that the Dutch Government had 
proposed the adoption of a decision to repeal the De cree of 4 July 2007 in relation to the ban on trade 
in products originating from harp and hooded seals.  While Ca nada welcomed this move, it 
understood that the decision had not yet been adopt ed.  As such, both the Belgian and Dutch measures 
remained in force.  Further to its request of 24 Fe bruary 2011, Canada requested, once again, that the 
DSB establish a panel, with standard terms of refere nce.  Given the close relation between this dispute 
and DS400, which would be considered under the ne xt item of the Agenda of the present meeting, 
Canada reiterated its preference to have the tw o disputes heard by a single set of panelists. 
66. The representative of the European Union said that the EU took note of Canada's second 
request for the establishment of a panel.  As rega rds the Dutch measures subject to the panel request, 
the EU wished to inform Members that, on 15 March 2011, the Dutch Government had signed a 
decree whereby the national prohibition on certain seal products would be withdrawn.  The decree 
would be published in the Dutch Official Bulletin w ithin two weeks and would enter into force after a 
period of eight weeks following its publication.  With in that period, the decree would be presented to 
parliament.  As regards the Belgian measures, the Belgian authorities had indicated that they would 
repeal the measure, or amend it, so that it would be limited to implementing the provisions of the EU 
Regulation.  In that regard, the EU considered that pursuing this dispute would serve no useful 
purpose and hoped that Canada would be able to abandon its claims as soon as the repeal of the 
measures became effective.  WT/DSB/M/294 
 Page 13 
 
 
  67. The DSB took note of the statements and agreed  to establish a panel in accordance with the 
provisions of Article 6 of the DSU w ith standard terms of reference. 
68. The representatives of China, Colombia, Japan , Mexico, Norway and the United States 
reserved their third-party rights to pa rticipate in the Panel's proceedings. 
5. European Communities – Measures prohibitin g the importation and marketing of seal 
products 
(a) Request for the establishment of a panel by Canada (WT/DS400/4) 
69. The Chairperson recalled that the DSB had considered this matter at its meeting on 
24 February 2011 and had agreed to revert to it.   She drew attention to the communication from 
Canada contained in document WT/DS400/4, and invited the representative of Canada to speak. 
70. The representative of Canada said that, as in the DS369 dispute, her country had made its first 
request for the establishment of a panel regarding the EU measures that banned the trade in seal 
products at the 24 February 2011 DSB meeting.  At  that meeting, Canada had outlined the various 
reasons for proceeding with this case which it did not wish to repeat at the present meeting.  
Nevertheless, Canada wished to reite rate that it believed that trade r estrictions could not be justified 
by relying on myths and misinformation, and Canada  encouraged people to form their opinions based 
on the facts.  The facts were that the Canadian seal harvest was lawful, sustainable, strictly regulated 
and guided by rigorous animal welfare principles that  were internationally recognized by virtually all 
independent observers.  The Atlantic harp seal popu lation was healthy and abundant.  It was currently 
estimated at around 9.1 million animals, which was more than four times what it had been in the 
1970s, while supporting high harvest leve ls over much of that period.  Furthermore, the Canadian seal 
harvest helped to provide thousands of jobs in Canada's remote coastal and northern communities 
where few economic opportunities existed.  Further to its request of 24 February 2011, Canada 
requested, once again, that the DSB establish a panel to examine this dispute, with standard terms of 
reference. 
71. The representative of the European Union said that the EU took note of Canada's second 
request for the establishment of a panel.  The EU also noted that Canada's request simply listed a 
series of WTO provisions with which the EU meas ures would, in Canada's view, appear to be 
inconsistent.  Canada had provide d no meaningful explanation of the reasons why the EU measures 
were deemed inconsistent with each of those provis ions.  The EU considered that the request lacked 
the degree of specificity required by the DSU.  The EU , therefore, reserved the right to raise this issue 
with the panel.  The EU was strongly convinced of the strength of its case and stood ready to defend 
its measures which it considered to be  fully consistent with WTO law. 
72. The representative of Iceland said that his country  took note of the requests made by Canada 
for the establishment of a panel in this long-sta nding dispute concerning the EU measures prohibiting 
the importation and marketing of seal products.  Th e measures were also a source of concern to 
Iceland.  As Norway had rightfully observed at th e 24 February 2011 DSB meeting, this dispute was 
not just about seal products, but more importantly a bout the principle of sustainable utilization of all 
living marine resources, and the ability to market  the products resulting from such practices, both 
from hunting and fishing.  Iceland agreed with Cana da that there were no justifiable grounds for the 
ban introduced by the EU.  The seal populations ar ound Iceland were subject to management and their 
existence was not threatened in any way.  Moreove r, their utilization was considered desirable.  
Iceland, therefore, had a substantial interest in the matter and sympathized with Canada's request.  
Iceland wished to participate in the Panel's proceedings as a third party. WT/DSB/M/294 
Page 14  
 
  73. The DSB took note of the statements and agreed  to establish a panel in accordance with the 
provisions of Article 6 of the DSU w ith standard terms of reference. 
74. The representatives of China, Colombia, Iceland, Japan, Mexico, Norway and the 
United States reserved their third-party rights to participate in the Panel's proceedings. 
6. China – Certain measures affecting electronic payment services 
(a) Request for the establishment of a panel by the United States (WT/DS413/2) 
75. The Chairperson recalled that the DSB had considered this matter at its meeting on 
24 February 2011 and had agreed to revert to it.  She drew attention to the communication from the 
United States contained in document WT/DS413/2, a nd invited the representative of the United States 
to speak. 
76. The representative of the United States said that, as his country had explained at the 
24 February 2011 DSB meeting, for several years th e United States had been concerned about certain 
measures maintained by China affecting suppliers of electronic payment services.  In the financial 
services sector, as had been set out in China's services Schedule8, China had undertaken both market 
access and national treatment commitments with respect to these services.  Despite its GATS 
commitments, however, China imposed market access restrictions and requirements on service 
suppliers of other Members seeking to supply electronic payment services in China.  The 
United States considered that the measures identified in the US panel request were inconsistent with 
China's obligations under the GATS.  In particular, China's measures appeared to breach its obligation 
under Article XVI of the GATS to accord service s and services suppliers of any other Member 
treatment no less favourable than that provided fo r in China's Schedule, and its obligations under 
Article XVII of the GATS to accord to services and service suppliers of any other Member treatment 
no less favourable than that it accorded to its own like services and service suppliers.  The 
United States also wished to note that it disagreed  with the assertion that China had made at the 
24 February 2011 DSB meeting that the US panel re quest incorporated measu res which had not been 
identified in the US request for consultations.  Acco rdingly, the United States again requested that the 
DSB establish a panel to examine the matter set out in its panel request, with standard terms of 
reference.  
77. The representative of China said that her country  regretted that the United States pursued this 
matter by requesting the establishment of a panel for the second time.  After receiving the request for 
consultations, China had held sincere consultations  with the United States and was disappointed that 
no positive solution was achieved.  Contrary to what  the United States had stated, China consistently 
observed the WTO Agreement and the commitmen ts undertaken upon its accession to the WTO.  
China would strongly defend its interests in accordance with relevant WTO rules. 
78. The DSB took note of the statements and agreed  to establish a panel in accordance with the 
provisions of Article 6 of the DSU w ith standard terms of reference. 
79. The representatives of Australia, the European Un ion, Guatemala, Japan and Korea reserved 
their third-party rights to participate in the Panel's proceedings. 
                                                      
8 Schedule of Specific Commitments on Services an nexed to the Protocol on the Accession of the 
People's Republic of China.  WT/DSB/M/294 
 Page 15 
 
 
  7. China – Countervailing and anti-dumping duties on grain oriented flat-rolled electrical 
steel from the United States 
(a) Request for the establishment of a panel by the United States (WT/DS414/2) 
80. The Chairperson recalled that the DSB had considered this matter at its meeting on 
24 February 2011 and had agreed to revert to it.  She drew attention to the communication from the 
United States contained in document WT/DS414/2, a nd invited the representative of the United States 
to speak. 
81. The representative of the United States said that China had imposed anti-dumping and 
countervailing duties on grain-oriented electrical st eel, known as GOES, from the United States.  As 
the United States had explained at the 24 Februa ry 2011 DSB meeting, China's dumping and subsidy 
determinations in the GOES investigation appeared  to breach a number of its obligations under the 
GATT 1994, the Anti-Dumping Agreement, and th e Subsidies Agreement.  The apparent 
inconsistencies were set out in detail in the US request for the establishment of a panel.  The US 
concerns related to every phase of China's investig ation.  In short, the United States believed that 
there had been profound procedural  and substantive deficiencies in the investigation, and these made 
the determinations unsustainable under WTO rules.  Accordingly, the United States requested that the 
DSB establish a panel to examine the matter set out in  the US panel request, with standard terms of 
reference. 
82. The representative of China said that her c ountry regretted that the United States had 
submitted its request for panel establishment for the second time.  As stated at the 24 February 2011 
DSB meeting, China firmly believed that its anti-dumping and countervailing measures were fully 
consistent with WTO rules.  China wished to po int out again that the US panel request contained 
claims that were not listed in the US request for c onsultations and those claims had not been subject to 
consultations.  China understood that a panel would be established at the present meeting and that it 
would vigorously defend its rights and interests in accordance with WTO rules. 
83. The DSB took note of the statements and agreed  to establish a panel in accordance with the 
provisions of Article 6 of the DSU w ith standard terms of reference. 
84. The representatives of the European Union, H onduras, India, Japan, Korea and Viet-Nam 
reserved their third-party rights to pa rticipate in the Panel's proceedings. 
8. European Communities – Measures prohibitin g the importation and marketing of seal 
products 
(a) Request for the establishment of a panel by Norway (WT/DS401/5) 
85. The Chairperson drew attention to the comm unication from Norway contained in document 
WT/DS401/5, and invited the representative of Norway to speak. 
86. The representative of Norway said that, at the present meeting, her country was requesting the 
establishment of a panel in the lo ng-standing dispute with the EU re garding its ban on trade in seal 
products, which had come into effect on 20 A ugust 2010.  As outlined in its request of 
14 March 2011, it was Norway's firm view that th e Seal Regulation and its  implementing regulation 
were inconsistent with the EU's WTO obligati ons, including the Agreement on Agriculture, the TBT 
Agreement and the GATT 1994.  Norway saw no ju stification for the EU ban on trade in seal 
products.  Moreover, this dispute was not just about seal products, but more importantly about a 
Member's right, under the WTO Agreements, to trade in  the marine resources it chose to harvest in a 
sustainable manner.  WT/DSB/M/294 
Page 16  
 
  87. Without entering into the merits of its claims, Norway wished to emphasize that none of the 
species hunted by Norway were endangered and were  not listed by CITES.  The Norwegian quotas for 
its seal catch were set in line with advice from th e International Council for the Exploration of the 
Sea, and the catch in recent year s had been well below the total allowable catch.  The hunt was, in 
other words, a sustainable part of the livelihoo d of coastal communities and founded in science.  
Furthermore, Norway took animal welfare very seriously.  The Norwegian hunt was subject to strict, 
detailed regulation regarding the killing of anim als, training of marksmen, surveillance and 
monitoring, which was strictly enforced and ensure d high animal welfare standards.  Studies by the 
European Food Safety Authority and Consultancy within Engineering, Environmental Science and 
Economics confirmed that the Norwegian hunt conforme d to the highest standards.  Norway's panel 
request was the latest step in a long line of enga gements with the EU on this issue.  On numerous 
occasions over the past few years, Norway had voiced its concerns over the Seal Regulation and its implementing regulation, both at a political level a nd at a working level.  Norway had made several 
statements regarding this issue in the TBT Committ ee, most recently on 2 November 2010.  Norway 
had held two rounds of consulta tions with the EU, on 15 December 2009 and on 1 December 2010 
respectively.  Unfortunately, those consultations ha d not resolved the dispute.  Norway, therefore, 
found itself with no choice but to request the establishment of a panel, with standard terms of reference, in order to resolve this dispute.   
88. The representative of the European  Union said that the EU regre tted that, after the rounds of 
consultations held in the past few years, Norway  was requesting the establishment of a panel at the 
present meeting.  The EU was strongly convinced of the strength of its case and stood ready to defend 
its measures which it considered to be fully consiste nt with WTO law.  The EU could not agree to the 
establishment of a panel at the present meeting. 
89. The representative of Canada said that her coun try welcomed Norway's decision to request 
the establishment of a panel on the same EU measur es in question as those in the DS400 dispute.  
This request reaffirmed Canada's  conviction that the EU ban was inconsistent with the EU's WTO 
obligations. 
90. The representative of Iceland said that, rather th an repeating the explanations it had already 
provided, Iceland wished to refe r delegations to its statement ma de under Agenda item 5.  On the 
same grounds as in the case of Canada's panel requ est, Iceland sympathized with Norway's request. 
91. The DSB took note of the statements and agreed to revert to this matter. 
9. United States – Definitive anti-dumping and countervailing duties on certain products 
from China 
(a) Report of the Appellate Body (WT/DS379/AB /R) and Report of the Panel (WT/DS379/R) 
92. The Chairperson drew attention to the comm unication from the Appellate Body contained in 
document WT/DS379/8 transmitting the Appellate Body  Report on:  "United States – Definitive Anti-
Dumping and Countervailing Duties on Certain Products from China", which had been circulated on 
11 March 2011 in document WT/DS379/AB/R, in accord ance with Article 17.5 of the DSU.  She 
reminded delegations that the Appe llate Body Report and the Panel Re port pertaining to this dispute 
had been circulated as unrestricted documents.  As Members were aware, Article 17.14 of the DSU required that:  "An Appellate Body report sha ll be adopted by the DSB and unconditionally accepted 
by the parties to the dispute unless the DSB decid es by consensus not to adopt the Appellate Body 
report within 30 days following its circulation to  Members.  This adoption procedure is without 
prejudice to the right of Members to express their views on an Appellate Body report".   WT/DSB/M/294 
 Page 17 
 
 
  93. The representative of China said that her country  thanked the Appellate Body, the Panel and 
the respective Secretariats for the time and effort th at they had dedicated to resolve this dispute.  
China welcomed the Appellate Body's reversal of  the Panel's findings concerning double remedy and 
public body.  In 2006, the US Department of Commerce (USDOC) had changed its long-standing 
policy of not applying countervailing measures to countries that it designated as non-market 
economies.  Since that reversal in policy, China's exports to the United States had been subjected to 
over twenty parallel anti-dumping a nd countervailing duty investigations .  Even before the USDOC's 
policy reversal, it had been widely recognized  in the United States that the imposition of 
countervailing duties in conjunction with the im position of anti-dumping duties calculated under a 
non-market economy (NME) methodology would likely result in measures that offset the same 
subsidies twice – a "double remedy".  This fact  had been recognized by  the US Government 
Accountability Office, the US Congress, the US Court of International Trade and now in this dispute by the Appellate Body.  It was deeply regretta ble that, notwithstanding its own acknowledgement of 
the double remedy problem, the USDOC had persiste ntly refused to avoid the imposition of double 
remedies in cases involving Chinese exports.  In  China's view, the USDOC had breached the 
fundamental principles of fairness and reasonablen ess that should have been adhered to by all 
investigating authorities.  China considered that th e position taken by the United States in this dispute 
– that it had no obligation under the covered agreem ents to avoid offsetting the same subsidies twice – 
was one of the more extreme positions taken by a Me mber in the history of dispute settlement.  The 
US position was fundamentally incompatible with the remedial purpose of countervailing measures.  
For those reasons, China was grateful for the Appell ate Body's decision to reject the legal arguments 
put forward by the United States, and to find that double remedies were incons istent with Article 19.3 
of the SCM Agreement.  Just as an investigating au thority was subject to an affirmative obligation to 
ascertain the precise amount of the subsidy, so to o was it subject to an affirmative obligation to 
establish the appropriate amount of the duty.  The Appellate Body had correctly recognized that the 
use of a NME methodology to calculate anti-dumping duties presumptively offset any subsidies 
conferred in respect of the same product.  The inv estigating authority, therefore, had an affirmative 
legal obligation to investigate and avoid the im position of double remedies in those circumstances. 
94. China also wished to stress another systemically  important finding of the Appellate Body.  In 
all four countervailing duty investigations at issue in this dispute, the USDOC had determined that 
state-owned enterprises were "public bodies" unde r Article 1.1 of the SCM Agreement based on 
nothing more than a rule of majority government  ownership.  The Appe llate Body had correctly 
reversed this interpretation, and had held that the "core feature" of a public body was that it had been 
vested with and exercised authority to perform governmental functions.  The Appellate Body's 
examination of this interpretative issue was thorough and incisive.  China welcomed, in particular, the 
Appellate Body's affirmation of the requirement und er Article 31(3)(c) of the Vienna Convention to 
take into account relevant rules of international law as  part of the process of treaty interpretation.  The 
Appellate Body's interpretation of the term "pub lic body" was entirely consistent with the well-
established principle of customary international law that the actions of state-owned corporate entities 
were prima facie private.  Consistent with this principle,  which the Appellate Body had previously 
recognized in its Report pertaining to the dis pute "US - DRAMS", the actions of state-owned 
corporate entities were presumptively not attributab le to a Member under Article 1.1 of the SCM 
Agreement.   
95. China's principal reservation in respect of  the Appellate Body's Report concerned its 
interpretations of Article 14(b) and (d) of the SC M Agreement.  In China's view, the question of 
whether a particular benchmark was "distorted" coul d not be separated from economic considerations.  
"Distortion", as a concept, had no meaning apar t from an economic analysis of how markets 
ordinarily behaved.  China hoped that, in the futu re interpretation and application of these provisions, 
investigating authorities and WTO dispute settlement  panels would ensure that economics played a 
greater role in evaluating whether particular benc hmarks were "distorted".  With this limited 
reservation in mind, China was pleased to request the adoption of the Appellate Body Report and the WT/DSB/M/294 
Page 18  
 
  Panel Report, as modified by the Appellate Body.  China believed that the Appellate Body Report had 
made a significant contribution to the interpretation of subsidy disciplines, and would strengthen the 
credibility of the WTO dispute settlement system as a whole.  China expected and looked forward to 
prompt and full implementation of the Report by the United States. 
96. The representative of the United States said that his country thanked the Panel, the Appellate 
Body, and the Secretariat staff assisting them fo r their work in this proceeding.  Although the 
United States disagreed with several of the Panel' s findings, it recognized the Panel's efforts in 
grappling with the numerous complex issues in this dispute, including, in particular, the use of out-of-country benchmarks to measure be nefit under Article 14 of the SCM Ag reement, the determination of 
whether a subsidy was specific within the meaning of Article 2 of the SCM Agreement, the proper 
interpretation of the term "public body" under Ar ticle 1 of the SCM Agreement, and China's novel 
claims relating to the concurrent application of  countervailing duties (CVDs) and anti-dumping duties 
(ADs) calculated using a non-market economy (NME) methodology.  The United States considered that the Panel's findings with respect to those four  issues reflected a proper legal analysis of the SCM 
Agreement.  On appeal, the Appellate Body had u pheld in part and reversed in part the findings 
relating to the use of out-of-country benchmarks to  measure benefit, upheld the determination of 
specificity, and reversed the Panel' s findings relating to the interpre tation of the term "public body" 
and relating to China's claims regarding the conc urrent application of CVDs and NME ADs.  The 
United States was deeply disappointed with the fi ndings in the Appellate Body Report related to the 
interpretation of the term "public body" and China's claims related to the concurrent application of 
CVDs and NME ADs, and considered that th e Report's reasoning was based on a number of 
problematic assertions and assumptions.  At the presen t meeting, the United States wished to discuss a 
few key issues that it believed should be of serious concern to all Members. 
97. The US concerns with the interpretation of th e term "public body" in Article 1 of the SCM 
Agreement extended both to the le gal reasoning employed in the A ppellate Body Report and to its 
real-world ramifications.  Under the SCM Agreem ent, a Member may countervail a subsidy by "a 
government or any public body within the territory of  a Member".  In the underlying investigations, 
the United States had determined that certain st ate-owned enterprises (SOEs) were public bodies, 
because the Chinese Government was the majority ow ner of those enterprises and therefore controlled 
them.  Prior panels in "Korea - Commercial Vessels" and "EC - Large Civil Aircraft", like the Panel in 
this dispute, had interpreted the term "public  body" as meaning an entity controlled by the 
government.
9  Despite acknowledging that the ordinary meaning of "public body" could encompass 
entities controlled by the government10, the Appellate Body Report ha d concluded that government 
ownership and control did not ma ke an entity a "public body", but that the entity must possess, 
exercise, or be vested with "governmental author ity" and be performing a "governmental function".11  
To reach that result, the Report had relied in part on context, in particular  a sub-paragraph in the 
definition of a subsidy that established that fina ncial contributions could also be provided through 
private bodies when they were entrusted or directed  to do so by a government or a public body.  The 
Report then asserted that every public body must, ther efore, be able to entrust or direct private bodies 
to provide financial contribu tions, and concluded that public bodies must necessarily possess 
governmental authority in order to do so.12  In the view of the United States, this conclusion was a 
non-sequitor.  While it may be the case that some public bodies would have authority to entrust or 
direct a private body, nothing in the text of the SCM Agreement required that  all public bodies would 
have the authority to do so.  Indeed, it should be pl ain to all Members that not even all organs of a 
government would have authority to entrust or direct a private body to make a financial contribution.   
                                                      
9 See "Korea - Commercial Vessels", paras. 7.50, 7.172, 7.353 and 7.356;  "EC - Large Civil Aircraft" 
(Panel), para. 7.1359;  Panel Report, para. 8.94. 
10 Appellate Body Report, para. 285. 
11 Appellate Body Report, paras. 317 and 318. 
12 Appellate Body Report, paras. 291-297.  WT/DSB/M/294 
 Page 19 
 
 
  98. The United States noted that, in addition, the Report had reasoned that, because a particular 
action listed in the definition of a subsidy – "a d ecision to forego or not collect government revenue 
that is otherwise due" – "appears to constitute  conduct inherently involving the exercise of 
governmental authority", then a public body must be an entity vested with certain governmental 
responsibilities, or exercising certain governmental authority.13  That, once again, was a non-sequitor, 
and the Report had offered no explanation for wh y the functions other than foregoing government 
revenue that were identified in Article 1 of the SCM Agreement should be considered "governmental 
functions".  The United States also noted that th e Appellate Body Report had rejected the Panel 
Report's conclusion that the term "or" in the de finition of a subsidy indicated that the terms 
"government" and "public body" were separ ate concepts with distinct meanings.14  Ultimately, it 
appeared that the interpretation in the Appellate  Body Report collapsed the terms "government" and 
"public body", such that there was no purpose for th e term "public body" to have been included by 
Members in the SCM Agreement at all.  Reading terms out of an agreement was contrary to the 
customary rules of treaty interpretation.  In m oving away from an objective "control" standard, as 
adopted by this Panel and previous panels, th e Appellate Body Report adopted an undefined 
"governmental authority" standard.  The test cr eated by the Appellate Body Report appeared to 
require an additional analysis in to what constituted "governmental authority" within the domestic 
legal system of the exporting Member.  There was, in  addition, no elaboration in the Report as to how 
to determine whether the entity in  question possessed or exercised su ch authority.  In a CVD case, 
such an analysis could place a considerable additional burden on the responding companies and 
governments to provide appropriate data, as well as on administering authorities to collect and analyze 
all of the appropriate data.  It may be difficult in many instances to identify concrete evidence 
establishing that state-owned enterprises ( SOEs) we re vested with or exercising "governmental 
authority", despite the fact that they were ow ned by the government.  Yet at the same time, 
governments could and did use SOEs as key instru ments through which to manage national economic 
activity.  In such cases, the pricing policies of SOEs in NMEs could be very trade distorting, primarily 
the provision of inputs and financing at below ma rket rates.  Consequently, the Appellate Body 
Report could make it much more difficult to a ddress trade-distorting subsidies provided through 
SOEs.  
99. The United States was similarly concerned with  both the legal reasoning and the real-world 
implications of the findings in the Appellate B ody Report related to the concurrent application of 
CVDs and NME ADs.  The United States was concerned that those findings did not appear to derive 
from the text of the SCM Agreement, and that the reasoning employed did not seem to support the 
findings in the Report.  The Appellate Body Repor t had found that a Member may not concurrently 
impose CVDs and NME ADs without taking affirmative steps to ensure that concurrent application 
did not result in a so-called "double remedy".  It was important to bear a few things in mind when considering this result.  First, no provision of either the AD or SCM Agreement restricted a Member's 
ability to apply NME ADs and CVDs concurrently.  Each of the two Agreements disciplined a 
different remedy, and neither Ag reement conditioned or limited the ability of a Member to apply a 
CVD on whether or not the AD was calculated using an NME approach.  Second, the Panel Report had noted that a predecessor agreement, the Tokyo Round Subsidies Code, expressly limited the 
ability of parties to that Agreement to apply a CVD concurrently with an NME AD, but WTO Members had not agreed to include such a limita tion in the WTO Agreements.  The Appellate Body 
Report had found this irrelevant, even though in othe r contexts it had stated that omission of language 
or silence on an issue must be given some meaning.
15  The United States was puzzled by the different 
approach in this dispute. 
                                                      
13 Appellate Body Report, para. 296. 
14 Appellate Body Report, para. 289. 
15 Appellate Body Report, paras. 579-581. WT/DSB/M/294 
Page 20  
 
  100. Third, the Panel had correctly noted that Article VI:5 of the GATT 1994 prohibited the 
application of anti-dumping and countervailing duties to compensate for the same situation of dumping or export subsidization and had found it significant that no similar prohibition existed in the 
covered agreements with respect to domestic subsidization.
16   However, despite recognizing that, "in 
the case of domestic subsidies, an express prohibi tion is absent" from the text of the covered 
agreements17, the Appellate Body Report had nevertheless created a prohibition on the imposition of a 
so-called "double remedy" through the concurrent  application of CVDs and NME ADs.  The 
conclusion in the Appellate Body Report was based  entirely on Article 19.3 of the SCM Agreement.  
That Article provided that, where CVDs were impo sed, they shall be levied in the "appropriate 
amounts in each case".18  The Appellate Body Report's expansive interpretation of the term 
"appropriate amounts" ignored the fact that Article 19 of the SCM Agreement was not concerned with 
the definition or calculation of CVDs, still less with the existence of concurrent anti-dumping 
proceedings, but rather was concerned with the "[i] mposition and [c]ollection" of CVDs.  Article 19.3 
of the SCM Agreement directed importing Member s to impose CVDs on imports from "all sources 
found to be subsidized and causing injury" except producers who had renounced subsidies or entered 
into undertakings.  The reference to assessing CVDs  in "appropriate amounts" referred simply to the 
fact that the CVD on particular imports may va ry, even though a CVD should be imposed in a non-
discriminatory manner.  The Report turned this clause  in Article 19.3 of the SCM Agreement into an 
obligation concerning the amount of the CVD.  In  the process, the Report created a subjective 
standard for what was an "appropriate" amount, deri ved from a wide variety of unrelated provisions, 
for example, the "desirab[ility]" of a lesser duty rule.19  None of these provisions, though, addressed 
the concurrent application of ADs and CVDs.  As a result, the Report introduced unpredictability into 
the SCM Agreement.  Members had no certainty in determining what would constitute an 
"appropriate" amount of a CVD in any given si tuation.  To compound the problem, the Report 
appeared to impose the entire burden of proving that there was no "double remedy" on the importing Member.  Contrary to other situations, the exportin g Member seemingly did not need to demonstrate 
that the CVD was in excess of the "appropriate" amount .  It would appear to be enough that the 
exporting NME Member simply demonstrated that both CVDs and NME ADs were applied 
concurrently.
20  Because the Report imposed new obligations  that did not appear to derive from the 
text of the covered agreements, its findings in this regard appeared to  be inconsistent with Article 19.2 
of the DSU.    
101. The United States also wished to express its co ncerns with the decision to complete the 
analysis with respect to this claim.  Despite th e fact that the Panel Report had expressly made no 
findings with respect to the existence of any actual "double remedy" in any of the investigations at 
issue, and despite the fact that China had presen ted no evidence regarding the existence of any 
specific instance of a "double remedy" in any of the investigations, the Appellate Body Report, 
nonetheless, had completed the analysis and had f ound the US measures to be inconsistent with 
Article 19.3 of the SCM Agreement.  In doing so, the Report stated that USDOC had dismissed the 
arguments of Chinese respondents and the Government of China on the ground that it had no statutory 
authority to make any adjustment and that USDOC "refused outright to afford any consideration to 
the issue".21  The Report did not cite any findings in the Panel Report to support these factual 
statements.  What the Panel Report actually said was that, in the context of the anti-dumping 
                                                      
16 Panel Report, paras. 14.117-118. 
17 Appellate Body Report, para. 567. 
18 Appellate Body Report, paras. 547-563, 582-583. 
19 See SCM Agreement, Article 19.2. 
20 Appellate Body Report, paras. 602, 605-606. 
21 Appellate Body Report, para. 604.  WT/DSB/M/294 
 Page 21 
 
 
  investigations, the United States had rejected Chin a's suggestion that the USDOC had made any broad 
pronouncement as to whether it lacked legal authority.22    
102. In addition, the United States rejected the sugg estion that the USDOC had refused to afford 
any consideration to the issue in its determinati on.  The United States had explained that the USDOC 
had considered what facts and argumentation had been  offered.  The assertions in the Appellate Body 
Report did not accurately characterize USDOC's acti ons and were not the type of uncontested facts 
upon which the analysis had been completed in ot her Appellate Body reports.  The United States 
again noted certain practical concerns that aro se from these findings, which could seriously hinder 
Members' ability to address trade-distorting subsidies by a NME Member.  The Appellate Body Report appeared to impose significant admini strative burdens on Members' trade remedy 
administrators in the situation of concurrent a pplication of CVDs and NME ADs.  If required, 
measuring the effect of a subsidy on the export price of a good and other components of the dumping margin may involve highly complex economic and ec onometric analysis.  The difficulties associated 
with such measurement could be significant.  Th is raised serious questions about whether Members 
would be able to address trade-distorting subs idies by NME Members.  In conclusion, the 
United States believed that the findings of the A ppellate Body Report should be of concern to all 
Members, both because of the legal analysis from wh ich they had resulted, and also the potentially 
serious limitations they could impose on Members'  ability to address trade- distorting subsidies. 
103. The representative of Mexico said that his country  had participated as a third party in this 
dispute given the systemic relevance of the issu es involved.  The findings of the Appellate Body 
Report would serve as a reference for the conduct of any investigating authority faced with requests 
for both anti-dumping and subsidies investigations on the same products.  In light of the systemic 
relevance of this Appellate Body Report, Mexico  wished to comment on  three specific issues 
contained in the Report.  First, with regard to th e interpretation of the term "public body" within the 
scope of Article 1.1(a)(1) of the SCM Agreement,  Mexico understood that the Appellate Body, in 
general terms, had concluded that a "public body within the meaning of Article 1.1(a)(1) of the SCM 
Agreement must be an entity that possesses, exercises  or is vested with governmental authority".  
However, as expressed in its third party oral stat ement before the Appellate Body, it was Mexico's 
view that Article 1.1 of the SCM Agreement did not re fer to the authority, functions or attributions of 
the government in general, exercised by either the government itself, or through agencies, entities or 
any other type of public bodies, or, in some occasions, private bodies.  Article 1.1 of the SCM Agreement provided the definition of a subsidy, and Article 1.1(a)(i) defined the types of subsidies 
through a financial contribution.  Indeed, Article  1.1(a)(1)(iv) did not refer to functions of a 
governmental character or functions vested by the government in general, rather, when it used the 
term "functions" with regard to public bodies, it was strictly limited to those described in sub-
paragraphs (i)-(iii).  In that sense, the term "public body" must be given a broad meaning.  It must be 
understood that there was a subsidy within the meani ng of Article 1.1 of the SCM Agreement, when a 
body controlled by the government granted a fi nancial contribution and a benefit was thereby 
conferred.  Although Mexico had expressed this view during the proceedings, and would find it 
possible to consider that the term "public body" sh ould be given a broader meaning, this opinion was 
without prejudice to the Appellate Body's reasoning  which, Mexico considered, had its own merits 
and showed adequate reasoning.   
104. Second, with regard to the issue of "double remedies", it was Mexico's understanding that the 
Appellate Body's reasoning could be summarized as  follows.  The concurrent imposition of an anti-
dumping duty calculated on the basis of a NME methodology, and a countervailing duty on the same product was likely but would not necessarily result in th e offsetting of the same subsidization twice, in 
other words, in a double remedy.  The existence of a double remedy would depend on whether and to 
what extent domestic subsidies had lowered th e export price of a product, and on whether the 
                                                      
22 Panel Report, para. 14.16. WT/DSB/M/294 
Page 22  
 
  investigating authority had taken the necessary corr ective step to adjust its methodology to take 
account of this factual situation.  The impos ition of a double remedy was inconsistent with 
Article 19.3 of the SCM Agreement, because the countervailing duty was not being levied "in the 
appropriate amount".  Mexico understood this to mean  that an investigating authority was allowed to 
concurrently impose an anti-dumping duty calculated on the basis of a NME methodology, and a 
countervailing duty on the same product, as long as it  assessed whether it wa s offsetting the same 
subsidization twice from that concurrent impositi on, and took the necessary steps to avoid this 
situation, or in other words, as long as it took the necessary steps to avoid a double remedy.  Mexico was still reviewing the implication of this decision do mestically.  In particular, Mexico was analyzing 
if it was possible for an investigating authority, in practice, to assess whet her it was offsetting the 
same subsidization twice from a concurrent impos ition of an anti-dumping duty calculated on the 
basis of a NME methodology, and a countervailing duty on the same product.   
105. Finally, Mexico wished to comment on the i ssue of the systemic importance of accepting the 
reasoning provided by the Appellate Body in its Report.  There might be occasions whereby a WTO 
Member did not agree with the decision of a pa nel or the Appellate Body.  However, Mexico 
recognized that the objective of the dispute settle ment mechanism was to provide "security and 
predictability to the multilateral trading system".  In  that sense, Mexico gave great importance to the 
decisions issued by panels and the Appellate Body .  Those decisions were not only binding for the 
disputing parties, but also had implications for futu re disputes and internal issues, where identical or 
similar situations that had previous ly been solved were cited.  As the Appellate Body had recognized, 
in paragraph 160 of its Report pertaining to th e dispute "United States – Final Anti-Dumping 
Measures on Stainless Steel from Mexico"(DS344), "d ispute settlement practice demonstrates that 
WTO Members attach significance to reasoning provi ded in previous pane l and Appellate Body 
reports.  Adopted panel and Appellate Body reports are often cited by parties in support of legal 
arguments in dispute settlement proceedings, and ar e relied upon by panels and the Appellate Body in 
subsequent disputes.  In addition, when enac ting or modifying laws and national regulations 
pertaining to international trade matters, WTO Members take into account the legal interpretation of 
the covered agreements developed in adopted panel and Appellate Body reports.  Thus, the legal 
interpretation embodied in adopted panel and Appellat e Body reports becomes part and parcel of the 
acquis  of the WTO dispute settlement system.  Ensuri ng 'security and predictability' in the dispute 
settlement system, as contemplated in Article 3.2 of  the DSU, implies that, absent cogent reasons, an 
adjudicatory body will resolve the same legal qu estion in the same way in a subsequent case." 
106. The representative of Turkey said that his count ry thanked the Appellate Body members and 
the Secretariat for their hard work in preparing the Report.  Turkey had participated as a third party in 
this dispute due its systemic interest in the correct  interpretation of the covered agreements.  Turkey 
had submitted its views on two issues:  "public b ody" and "external benchmark".  In that regard, 
Turkey wished to limit its comments only with regard  to the determination of a "public body" in the 
Appellate Body's decision.  Turkey had serious c oncerns about the latest decision of the Appellate 
Body regarding the determination of a "public body".  The Appellate Body had concluded that 
government ownership and control were not sufficient to make an entity a "public body," but that the 
entity must possess, exercise, or be vested with go vernmental authority in order to be deemed as 
public under the SCM Agreement.  The ruling of th e Appellate Body equated the term "public body" 
to "government" and annulled the difference betw een them.  However, the SCM Agreement stated 
that a subsidy should be provided by a "government" or a "public body".  It was an undisputed fact 
that the definition of a "public body" should not be same as the definition of a "government".  The drafters of the SCM Agreement had made a clea r distinction between the terms "government" and 
"public body".  However, the Appellate Body's decision on this issue had overreaching results that 
were not intended by the drafters of the SCM Agreem ent.  If the aim of the drafters had been the 
same, it was obvious that there would have been no  need to have two separate terms.  Since the 
drafters had used two distinct terms, there shoul d also have been a clear  distinction between the  WT/DSB/M/294 
 Page 23 
 
 
  definitions and functions of these two terms.  Ther efore, institutions falling under the definition of the 
term "government" could not be classified under the term "public body".   
107. However, the Appellate Body had ruled that, in  order to deem an entity as a "public body" 
under the SCM Agreement, it had to perform governme ntal functions.  Turkey reiterated that this 
erroneous interpretation equated these  two distinct terms to each othe r and this would render the term 
"public body" meaningless.  Turkey considered th at the Appellate Body ruling may frustrate the 
subsidy investigations, especially against NME countries.  It was a well-known fact that, in NME countries, the government had a predominant role in the market.  As a result of the Appellate Body's 
decision, the entities owned and controlled by the government could not be deemed as "public body" 
if it was not determined that they possessed, exercised,  or were vested with governmental authority.  
As a result of this ruling, in every investigati on, the investigating auth orities had to make an 
additional analysis of whether an entity possessed, exercised, or was vested with governmental 
authority.  This additional analysis would add to the investigating authorities' undue burden that was 
not required under the SCM Agreement.  Apart from  this additional burden, it would be almost 
impossible to prove the governmental authority of th e entity, since in many cases it was hard to find a 
paper trail demonstrating this issue.  Consequently , Turkey fully agreed with the US conclusion that 
the Appellate Body had effectively transformed the "p ublic body" test into a "government action" test 
without any substantial basis in the SCM Agreement.  It would be more difficult than ever and almost 
impossible to remedy those kinds of subsidies.  Tu rkey considered that the Appellate Body's ruling on 
this issue struck a blow to fair trade and promoted unfair trade.   
108. The representative of the European Union said th at the EU welcomed many of the findings of 
the Panel and the Appellate Body Reports in this cas e.  The EU noted that, on a number of issues, the 
Panel and the Appellate Body had confirmed the right of investiga ting authorities to take reasonable 
steps in order to ensure the imposition of effec tive countervailing measures, which were consistent 
with the SCM Agreement.  In particular, c oncerning the provision of goods and services and 
government loans, there was recognition of the righ t of investigating authorities to reject domestic 
prices or interest rates when they were distorte d by government intervention and to use external 
benchmarks in those circumstances.  There was also some clarification of the type of situations in 
which this could be done.  For example, the A ppellate Body had described circumstances where a 
predominant government market share would lead to a distortion of private-sector prices or interest rates, thus rendering any purely domestic comparis on with government prices or interest rates 
circular.  This would justify recourse to an out- of-country benchmark or some other benchmark not 
based on domestic prices or rates.  Furthermore, the Appellate Body had confirmed that de-jure  
specificity could be inferred in circumstanc es where the totality of the evidence, including 
government planning documents, led to the conclusi on that government subsidies were being directed 
or targeted towards certain industries.  In addition,  it was now clear that appropriate conclusions could 
be drawn from non-cooperation by responding governments when determining the existence of 
governmental financial contributions or the existence of a benefit. 
109. With respect to the Appellate Body's decision to  reject the Panel's findings on "public body", 
the EU felt compelled to make the following comments.  It seemed that, in the particular circumstances of the countervailing duty measures at issue, including the level of non-cooperation by 
the responding government indicated in the measures at issue, the Panel's findings could have been 
appropriate and would have ensure d that actions taken by such bodies were attributable to the 
government.  In that regard, the EU was concerned to preserve the separate nature of "public bodies", 
as distinct from "government", in the definition of a subsidy in Article 1 of the SCM Agreement.  The 
EU noted that the Appellate Body had determined  that the standard was one under which a public 
body must possess, exercise or be vested with gover nment authority.  The EU also noted that the 
Appellate Body had acknowledged that application of this standard may in some cases be a challenge 
for investigating authorities which was "more comp lex", a statement the EU would agree with but 
which, at the same time, caused some concern on how to properly apply this standard in trade defence WT/DSB/M/294 
Page 24  
 
  investigations.  The EU, therefore, considered that it was important that the standard clarified by the 
Appellate Body should be interpreted in a flex ible manner appropriate to the situation of the 
investigation and the totality of the evidence presente d.  In that regard, the EU was heartened by the 
Appellate Body's finding in this case that state-ow ned commercial banks, in the context of the facts on 
record concerning government interference in th e financial market, were public bodies.  The EU 
looked forward to the same common sense approach  being adopted for state-owned enterprises and 
other entities whose actions were attributable to the state.  
110. The EU also noted that the application of the clarified standard in an individual case would 
not only impact on the scope of evidence to be sough t out by investigating authorities, but would also 
have to factor in the level of cooperation by exporters and the govern ment concerned.  The EU did not 
understand the standard to mean that investigati ng authorities would have to surrender their duty to 
draw the appropriate inferences from non-cooper ation as the appropriate means to address the 
"complexities" of the situation.  Applying the sta ndard differently would give a license to exporters 
and their governments to undermine the efficiency of anti-subsidy disciplines through non-cooperation, and the EU did not read the Appellate Body Report to endorse such an approach.  In 
future investigations, the EU would seek out inform ation on the ownership, structure and purpose of 
such entities, as well as of the legislative and practical  environment in which they operated.  It should 
also be noted that such entities, even if not public bodies, still fell within the scope of the SCM 
Agreement if they were entrusted or directed by  government, a matter which also required a detailed 
and searching examination by the investigating authority.  
111. With regard to "double remedies", the EU noted  that the Appellate Body, unlike the Panel, 
had chosen to address this issue under Article 19.3 of the SCM Agreement.  However, the EU noted 
that the Appellate Body had accepted that a double re medy would not occur in all cases of concurrent 
imposition of a countervailing duty and an anti-dumping duty based on a non-market economy methodology and that each case had to be examined on th e basis of the specific facts.  In particular, it 
had to be examined whether the subsidy in ques tion had any impact on the export price.  The EU 
welcomed this flexibility accorded to investigating authorities and trusted that future determinations 
made under such guidelines would be reviewed in a common sense manner, in order to preserve the 
right of investigating authorities to offset both injurious dumping and subsidization when the case 
arose.   
112. Finally, the EU felt obliged to react to the view expressed at the present meeting, that the 
Appellate Body Report might be inconsistent with Artic le 19.2 of the DSU, at least in some respects.  
In light of the wording of Article 19.2 of the DSU, it was difficult to interpret this otherwise than as 
questioning the legitimacy of the Ap pellate Body Report, at least with regard to some points.  Any 
WTO Member was entitled to disagre e with the concrete results reached by the adjudicator in a 
particular dispute, and the EU had also done this .  Moreover, WTO Members could give their firm 
views on what the implications of such findings were – or should not be – for the future, as the EU 
had done at the present meeting.  However, Member s should – this was at least the EU's view – 
distinguish this very carefully from a situation wh ere they would question the legitimacy of a decision 
itself.  This was a very high threshold to reach in general, and certainly not the case with regard to the 
Reports which were being cons idered and would be adopted at the present meeting.   
113. The representative of Norway said that her count ry thanked the Appellate Body, the Panel and 
the Secretariat for their work on this dispute, a nd welcomed the adoption of the Panel and Appellate 
Body Reports at the present meeting.  Norway not ed that the Appellate Body had reached the same 
conclusion as those put forward by Norway in its third-party submission on two important issues of interpretation.  The first one was the definition of "public body" under the SCM Agreement, where 
the Appellate Body had confirmed th at a public body in this context must be "an entity that possesses, 
exercises or is vested with governmental authorit y", and that the mere government control through 
ownership was not sufficient to conclude on this question.  Norway saw this as an important  WT/DSB/M/294 
 Page 25 
 
 
  clarification.  The Appellate Body's acceptance that  each case must be looked at separately, giving 
careful consideration to all relevant characteristics, with particular attention given to whether an entity 
exercised authority on behalf of a government, was entir ely in line with Norway's view on this issue.  
Second, the Appellate Body had reversed the Pane l's findings on the issue of "double remedies", and 
had confirmed that the imposition of double reme dies was inconsistent with Article 19.3 and 
Article 32.1 of the SCM Agreement.  The Appella te Body had pointed out that the Anti-Dumping 
Agreement and the SCM Agreement should be interp reted together in a coherent and consistent 
manner, in order to avoid any possible circumven tion.  Norway welcomed the Appellate Body's 
finding on this issue. 
114. The representative of Canada said that her country  thanked the Panel, the Appellate Body and 
the Secretariat for their work in the proceedings.  Cana da was a third participant in this dispute, due to 
a systemic interest in the various provisions of th e SCM Agreement that had been considered.  Canada 
wished to register its views on three of the systemic  issues that had been considered by the Appellate 
Body.  First, Canada was disappointed with the A ppellate Body's interpretation of the phrase "public 
body" in Article 1.1(a)(1) of the SCM Agreement.  According to the Appellate Body, a "public body" 
must possess, exercise or be vest ed with governmental authority.  Given the existence of specific 
language on entrustment or direction of private bodi es in Article 1.1(a)(1)(iv) of the SCM Agreement, 
this interpretation appeared to render the phr ase "public body" redundant and eliminated the 
distinction between a public and private body agreed to by Members.    
115. Second, on the acceptable use of out-of-country benchmarks, Canada we lcomed the Appellate 
Body's confirmation that an investigating authority could not reject in-country private prices as an 
appropriate benchmark under Artic le 14(d) of the SCM Agreement solely on the basis of a 
government's predominant role as a supplier in the market.  Canada considered the Appellate Body's 
conclusion that, a "somewhat cursory" examinati on of other evidence had been acceptable, was 
limited to the factual situation present in the investig ations at issue in this case.  Canada also noted 
that the Appellate Body had not questioned the cl ear requirement, set out in the "US - Softwood 
Lumber IV" dispute and not at issue in this app eal, that out-of-country benchmarks, when justified 
under Article 14(d), must be adjusted to account for the prevailing market conditions in the country of 
provision.   
116. Third, Canada was concerned with the Appellate  Body's finding that the determination of the 
appropriate amount of countervailing duties under Artic le 19.3 of the SCM Agreement must take into 
account the amount of anti-dumping duties concurren tly imposed on imports pursuant to a non-market 
economy methodology.  This finding appeared inconsis tent with the fact that Article VI:5 of the 
GATT 1994 identified specifically the limited ci rcumstances where amounts of anti-dumping and 
countervailing duties imposed on imports may influe nce each other.  These limited circumstances 
were where countervailing duties addressing export s ubsidies were imposed concurrently with anti-
dumping duties.  Those circumstances were not present in this case. 
117. The representative of Australia said that her count ry had participated as a third party in this 
dispute because it had considered that the dispute ra ised important questions of legal interpretation 
under the SCM Agreement.  Australia wished to  make brief comments on the Appellate Body's 
findings in relation to two systemic issues, namely, the meaning of "public body" in Article 1.1(a)(1) 
of the SCM Agreement and the issue of "double reme dies".  With regard to "public body", Australia 
noted that in its Report, the Appellate Body had referr ed to an array of factors that may be considered 
in determining whether an entity was a "public body " within the meaning of Article 1.1(a)(1) of the 
SCM Agreement.  These included:  (i) a body v ested with authority to exercise governmental 
functions;  (ii) a body vested with authority to exercise governmental functions and capable itself of 
re-vesting that governmental authority;  (iii) a body  exercising governmental functions;  or (iv) a body WT/DSB/M/294 
Page 26  
 
  subject to government control if that c ontrol was exercised in a meaningful way.
23  Australia 
considered that greater clarification of the textual basis for developing those factors and of the meaning of requirements such as "meaningful cont rol", "governmental functions" and "governmental 
authority" would assist Members in making assessm ents as to whether an entity fell within the 
meaning of "public body" under the SCM Agreement.  The requirement that a public body be vested 
with authority to exercise governmental functions in order to be considered a public body within the 
meaning of Article 1.1(a)(1) was of particular con cern to Australia, given the diverse range of views 
expressed in a number of third-party submissions and interventions on the meaning of governmental 
authority and functions under those third-parties' re spective municipal laws.  It was also of concern 
given that, potentially, the only financial cont ributions that may be covered under the SCM 
Agreement were those from entities with, vested with, or carrying out governmental functions, 
whether governmental, public or private bodies.  
118. With regard to "double remedies", she said that the Appellate Body had found that the 
imposition of "double remedies" in this dispute was inconsistent with the requirement under 
Article 19.3 of the SCM Agreement that the remedy be  "appropriate".  In Australia's view, this finding 
created the risk of de-linking the direct relationshi p between the outcome of the investigation and the 
remedy that could be imposed, by allowing matters outside the investigation to be taken into account 
under this broader scope of appropriateness.  It ma y result in uncertainty as to what other factors, 
outside of the investigation conducted under the SCM Agreement, should now be considered by 
investigating authorities under the term "appropr iate" in Article 19.3 of the SCM Agreement. 
119. The representative of Japan said that his country thanked the Appellate Body, the Panel and 
their respective Secretariats for thei r work in this dispute.  As an interested third party and third 
participant, Japan had actively participated in and contributed to the discussions in these proceedings.  
Although Japan was still carefully examining the A ppellate Body Report and its legal and practical 
implications for the future operations of the SCM Ag reement, Japan wished to offer some preliminary 
observations on the Report, focusing in particular on the issue of "public body".  First, the Appellate 
Body had appeared to focus its textua l analysis primarily on the "structure"24 of the phrase at issue, by 
joining the terms "government" and "pub lic body" under the word "government".25  Although this 
"structure" may "suggest[] certain commonalities"26 and hierarchical relationship between those two 
terms, it was not clear to Japan whether and how th is structure alone would compel the reading that 
commonality must be "essential characteristi cs an entity must share with government".27  E v e n  
assuming that sharing "essential characteristics"  was relevant, Japan wondered why "essential 
characteristics" of government would necessarily be limited to "the performance of governmental 
functions, or the fact of being vested with, and exercising the authority to perform such function".28  
Furthermore, seeking commonalities between the two terms "government" and "public body" would 
not appear to squarely address the Panel's textua l, structural and contextual discussions on the 
separateness or distinctiveness of those two terms or concepts.  In that resp ect, it appeared to Japan 
that the Appellate Body had dismissed the Panel's textual and contextual analysis on the words "a", 
"or" and "any" in the phrase "a government or any public body" in Article 1.1(a)(1)29 of the SCM 
Agreement and some of the Panel's other discussions  that had distinguished the terms "government" 
                                                      
23 Appellate Body Report, "United States − Definitive Anti-Dumping and Countervailing Duties on 
Certain Products from China", (WT/DS379/AB/R, 11 March 2011), paras. 294, 318 - 320. 
24  Appellate Body Report, para. 289. 
25 Appellate Body Report, paras. 288-290.  Japan notes that while the Appellate Body formally 
distinguishes between the terms "government" in the narrow sense and "government" in the collective sense (para. 286), it does not appear to make a conceptual distinction between them (para. 290). 
26 Appellate Body Report, para. 288. 
27 Appellate Body Report, para. 290. 
28 Appellate Body Report, para. 290 
29 Appellate Body Report, para. 289.  WT/DSB/M/294 
 Page 27 
 
 
  and "public body"30 without explanation.  Japan wished to  know the rationale behind the Appellate 
Body's rejection of the Panel's discussions.  
120. Second, on the attribution rules in the ILC Articles on Responsibility of States for 
International Wrong Acts (the "ILC Articles"), the Appellate Body had stated essentially that those 
attribution rules would be relevant within the mean ing of Article 31(3) (c) of the Vienna Convention 
because both those rules and Article 1.1(a)(1) of  the SCM Agreement concerned the same subject 
matter;  i.e. "the question of attribution of conduct to a State"31;  although there were "certain 
differences in the approach reflected in those two sets of rules"32, Article 5 of the ILC Articles would 
support the Appellate Body's analysis on Article  1.1(a)(1) of the SCM Agreement because the 
Appellate Body "see(s) similarities in the core prin ciples and functions of the respective provisions";  
but eventually "because the outcome of [its] analysis does not turn on Article 5, it is not necessary" to 
decide whether Article 5 reflected customary international law.   
121. Japan had a few thoughts.  To begin with, the Appellate Body appeared to consider that 
Article 5 of the ICL Articles would "provide guidan ce for the interpretation of the term 'public body' 
in Article 1.1 (a)(1) of the SCM Agreement" becau se those two rules had "similarities in the core 
principles and functions".33  Even assuming that those two rules sh ared the core principles, Japan was 
not quite sure that having such similarities would necessarily mean that the type of the public body 
contemplated in Article 1.1(a)(1) of the SCM Agr eement must be circumscribed to those with the 
"common feature of the entities covered by"34 Article 5 of the ILC Articles.  In that connection, Japan 
noted that the Appellate Body had recognized "certa in differences in the approach" between those two 
rules, notably that while the attribution rules und er the ILC Articles specifically addressed "the 
particular conduct" at issue, Article 1.1(a)(1) of  the SCM Agreement's primary focus was on the "type 
of entity".35  These appeared to be critical and possibly deci sive differences.  Yet, the Appellate Body 
had summarily dismissed such differences as "any details or 'fine line distinctions'"36 without any 
further explanation.  Japan wished to know how the similarities, if any, between Article 1.1(a)(1) of 
the SCM Agreement and Article 5 of the ILC Articles would outweigh their differences. 
122. Second, in paragraph 313 of the Report, the Appe llate Body had stated that if "certain ILC 
Articles have been 'cited as containing similar provisions to those in certain areas of the WTO 
Agreement' … this evinces that these ILC Articles have been 'taken into account' in the sense of 
Article 31(3)(c) by panels and the Appellate Body".  This appeared to be exactly what the Appellate 
Body had done in paragraphs 309 to 311 of the Report.  Yet, the Appellate Body in the end had 
declined to rule on the core issue regarding the status of Article 5 of the ILC Articles.37  This raised at 
least the following questions:  How could certain ru les of international law (Article 5 of the ILC 
Article) be "taken into account within the meani ng of Article 31(3)(c) of the Vienna Convention 
without first deciding on its status as customary international law?  Or had the Appellate Body 
implicitly or otherwise decided that Article 5 of the ILC Articles reflected public international law 
somewhere in the Report?  If so, where was such a finding?  If the analysis on Article 5 of the ILC 
Articles in paragraphs 309 to 311 had not been made pursuant to Article 31(3)(c) of the Vienna 
Convention, then what was the basis for, and any relevance of, such consideration under customary 
rules of treaty interpretation?  U nder Article 31(3)(c) of the Vienna C onvention, "any relevant rules of 
                                                      
30 Those include, inter alia , the panel's discussions on the collective term "certain enterprises" in 
Article 2.1 (para. 8.66);  those on the phrase "within the terr itory of a Member" (para. 8.67);  and those on 
distinction between the two concepts "financi al contribution" and "benefit" (para. 8.71). 
31 Appellate Body Report, para. 309. 
32 Appellate Body Report, para. 309. 
33 Appellate Body Report, para. 311. 
34 Appellate Body Report, para. 310. 
35 Appellate Body Report, para. 309 (original emphasis). 
36 Appellate Body Report, para. 311. 
37 Appellate Body Report, para. 311. WT/DSB/M/294 
Page 28  
 
  international law applicable in the relations betw een the parties" were required to "be taken into 
account, together with the context".  Given the manda tory nature of this interpretive rule, how could 
the Appellate Body decline, as unnecessary, to re solve the issue of whether Article 5 of the ILC 
Articles reflected customary international law?  In any event, because the Appellate Body had not 
resolved the question of whether Article 5 reflected cu stomary international law, that rule could not be 
and had not been "taken into account" within th e meaning of Article 31(3)(c) of the Vienna 
Convention.  Given also the Appellate Body's statem ent that "the outcome of [its] analysis does not 
turn on Article 5", the Appellate Body's analysis on Article 5 in paragraphs 308 to 311 appeared to be 
unnecessary and had no legal significance. 
123. Third, the Appellate Body had stat ed that "Article 55 of the ILC Articles does not speak to the 
questions of whether, for the purpose of interpreti ng Article 1.1(a)(1) of the SCM Agreement, a panel 
or the Appellate Body can take into account prov isions of the ILC Articles", because "[t]he question 
in the present case … is not whether certain of the ILC Articles are to be applied".
38  Japan agreed that 
the rights and obligations enforceable in the WTO dispute settlement were those provided in the WTO 
Agreement, and "the provisi on being applied in the present case is Article 1.1(a)(1)"39, not Article 5 of 
the ILC Articles.  That being said, if Article 5 of the ILC Articles did not apply by virtue of lex 
specialis provision in Article 55, this rule would no t be "applicable in relations between the parties" 
and could not be "taken into account" pursuant to Article 31(3)(c) of the Vienna Convention.  Thus, 
Article 55 of the ILC Articles appeared to speak to  the question which had been before the Appellate 
Body, unless the issue of whether Article 5 reflected  customary international law was affirmatively 
resolved.    
124. Fourth, although it may not have been intended, Japan was concerned that some part of the 
Report could be read to indicate that the principl e of good faith interpretation under Article 31(1) of 
the Vienna Convention and the mere existence of an anti-circumvention provision (Article 
1.1(a)(1)(iv)) would categorically preclude any consid eration of circumvention in the interpretation of 
the provision, circumvention of wh ich was sought to be prevented.40  In that connection, Japan wished 
to recall that the Appellate Body had recognized in a previous dispute that, "in cases of entrustment or 
direction under Article 1.1 (a)(1)(iv), … much of the evidence that is publicly available, and therefore 
readily accessible to interested parties and the investigating authority,  will likely be of a 
circumstantial nature".41  Japan wished to simply note that the concern about circumventions was not 
merely a theoretical one, considering the challe nge that investigating authorities could face in 
establishing entrustment or direction with positive evidence depending on accessibility of relevant 
information in specific cases.   
125. Fifth, while Japan agreed that adopted panel reports and the Appellate Body reports as such 
do not fall within the definition of "context" unde r Article 31 (2) of the Vienna Convention, the 
relevant part of the Panel Report discussing the con cern of the panel in "Korea - Commercial Vessels" 
appeared to relate to the contextual analyses regarding the interpretati on of "public body" in 
Article 1.1(a)(1) of the SCM Agreement, specifically  that Panel's analysis based on the distinction 
between two concepts "financial contribution" an d "benefits", the distinction between public and 
private body, and the distinction between the natu re and behaviour of the entity (the actor) under 
Article 1.1 of the SCM Agreement.42  In any event, Japan recalled that the Appellate Body had 
                                                      
38 Appellate Body Report, para. 316 (original emphasis). 
39 Appellate Body Report, para. 316. 
40 See Appellate Body Report, paras. 326-327 and also para. 302. 
41 Appellate Body Report, "US – Countervailing Duty Investigation on DRAMS", footnote 277 
(emphasis added). 
42 Panel Report, paras. 8.71 and 8.72.  As stated in para. 3 supra , Japan wishes to know why the 
Appellate Body did not address the Panel's discussions on the reasoning of the panel in "Korea - Commercial 
Vessels" regarding the interpretation of Article 1.1 of the SCM Agreement.  WT/DSB/M/294 
 Page 29 
 
 
  explained in a previous dispute that "[i]nterpret ation pursuant to the customary rules codified in 
Article 31 of the Vienna Convention is ultimately a holistic exercise that should not be mechanically 
subdivided into rigid components.  Considering pa rticular surrounding circumstances under the rubric 
of ordinary meaning or in the light of its context would not, in our view, change the outcome of treaty 
interpretation".43  
126. Finally, the Appellate Body had explaine d that "all conduct of a governmental entity 
constitutes a financial contribution to the extent that it falls within sub-paragr aphs (i)-(iii) and the first 
clause of sub-paragraph (iv)".44  Given the Appellate Body's clear recognition that the relevant factor 
in Article 1.1(a)(1) of the SCM Agreement was the "type of entity"45, Japan understood the Appellate 
Body's statements to mean that once a particular entity was determined to be a public body that "is 
vested with authority to exercise governmental functions"46, any conduct of that entity, no matter 
whether it be an exercise of governmental authority or not, shall be attributed to the government and 
be deemed to be a subsidy if such  conduct fell within s ub-paragraphs (i)-(iii) of Article 1.1(a)(1) of 
the SCM Agreement.  The Appellate Body had furthe r explained that "the determination of whether a 
particular conduct is that of a public body must be made by evaluating the core features of the entity 
and its relationship to government in the narrow sense".47  According to the Appellate Body, "[t]he 
same entity may possess certain features suggesting it is  a public body, and others that suggest that it 
is a private body"48 and "evidence that a government exercises meaningful control over an entity and 
its conduct may serve, in certain circumstances,  as evidence that the re levant entity possesses 
governmental authority and exercises such authorit y in the performance of governmental functions".49  
These statements raised the questions:  What was th e conceptual relationship or distinction between 
an entity being under "meaningful control" by a gove rnment over itself and its conduct, and an entity 
being vested with and exercising governmental author ity?  With respect to the application of the 
Appellate Body's standards in practice to determ ine what entity be qualified as a "public body":  
(a) should the "core features" of the entity exhib it the characteristics suggesting it was a public body, 
or was it sufficient that the entity was vested with  authority to exercise governmental functions only 
in some part (possibly non-essential part) of its activ ities?  And, (b) what range and types of activities 
must be under "meaningful control" of the gove rnment:  should the wide range of activities be 
covered or would only a small portion of the activ ities be enough;  and should the "core" activities of 
the entity be under "meaningful control" of the g overnment?  In conclusion, Japan said that the 
Appellate Body Report raised a number of legal and practical questions.   
127. The representative of Argentina said that his co untry thanked the Appellate Body, the Panel 
and the Secretariat for their work in this dispute.  At the present meeting, Argentina wished to make 
only preliminary comments since the Reports were  still being examined in capital.  Argentina 
considered that the Appellate Body Report containe d some very important and useful interpretations, 
in particular with regard to the term "specificity " under Article 2.1 of the SCM Agreement.  However, 
like other delegations, Argentina had some concerns with regard to two issues which had been put 
forward in its third-party submission.  Argentina sh ared the views expressed by Canada and Australia 
with regard to the interpretation of the term "pub lic body" in the context of the SCM Agreement and 
the conditions, according to which two concurrent  anti-dumping and countervailing duties should be 
applied under the non-market economy methodology.  In  this regard, Argentina wished to point out 
that the Appellate Body had conclude d that the Panel's interpretation w ith regard to the term "public 
body" was incorrect, as it was based on the concept of "any entity controlled by a government".  In 
                                                      
43 Appellate Body Report, "EC - Chicken Cuts", para. 176. 
44 Appellate Body Report, para. 284 (emphasis added);  see also id. para. 309. 
45 Appellate Body Report, para. 309 (original emphasis). 
46 Appellate Body Report, para. 318;  see also e.g. para. 317. 
47 Appellate Body Report, para. 345 (emphasis added);  see also id. para. 317. 
48 Appellate Body Report, para. 381;  see also id. para. 345. 
49 Appellate Body Report, para. 318 (emphasis added);  see also id. paras. 346 and 355. WT/DSB/M/294 
Page 30  
 
  Argentina's view, the most relevant interpretation in this regard was whether or not there was a 
financial contribution, and in that context, the concept of controlling stake would appear more relevant than the performance of governmental functi on.  Argentina believed that the interpretation as 
to whether a "public body" was given governmental functions had serious sy stemic implications.  
With regard to the conditions where both measu res could be applied using a non-market economy 
methodology, like Canada, Argentina believed that Ar ticle VI:5 of the GATT 1994 should have been 
given more attention.  As stated by Australia, Ar gentina also considered that the way in which the 
Appellate Body had interpreted the term "appropriate" under Article  19 of the SCM Agreement would 
have serious implications for the investigating authorities.   
128. The DSB took note of the statements, and adopt ed the Appellate Body Report contained in 
WT/DS379/AB/R and the Panel Report contained in WT/DS379/R, as modified by the Appellate 
Body Report. 
10. Proposed nomination for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/445) 
129. The Chairperson drew attention to document WT/DSB/W/445, which c ontained an additional 
name proposed for inclusion on the indicative list of  governmental and non-governmental panelists, in 
accordance with Article 8.4 of the DSU.  She propo sed that the DSB approve the name contained in 
document WT/DSB/W/445. 
130. The DSB so agreed. 
__________